Karnataka High Court
Shri.Balu S/O Bhairu Balnaik @ Bhainaik vs The State Of Karnataka on 13 August, 2020
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13 t h DAY OF AUGUST 2020
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL PETITION No.100717/2020
BETWEEN:
SHRI.BALU S/ O BHAIRU BA LNAIK @ BHAINAIK
AGE: 54 YEARS , OCC: A GRICULTURE,
R/O: PETHGA LLI , KADOLI,
TQ & DIST: BELA GAVI.
... PETITIONER
(BY SRI. S.M . MUCHANDI, ADV OCATE)
AND:
THE STATE OF KARNATAKA
THE POLI CE INSPECTOR A PMC
(AGRICULTURE PRODUCE MARKETIN G COMMITTEE)
YARD POLICE STA TION,
REPRES ENTED BY ITS
STATE PUBLIC PROSECUTOR,
HIGH CURT BUILD ING,
HIGH CURT OF KA RNATAKA,
AT: DHARWAD BENCH.
... RES PONDENT
(BY SRI. RAMESH B. CHIGARI , HCGP)
THIS CRIMINAL PETITION IS FILED UNDER
SECTION 439 OF CR.P.C., PRA YING THAT THE
PETITION BE ALLOWED AND THE PETITIONER MAY
KINDLY BE ENLARGED ON REGULAR BAIL IN
C.C.NO.103/ 2020 (APMC YARD P.S.CRIME 138/ 2019
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U/S 307, 366(A), 504, 506, 201 R/ W 34 I PC) ON THE
FILE ON IV JMFC, BELAGAVI .
THIS CRIMINAL PETITION COMING ON FOR
ORDERS THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
This petition is filed by accused No.1 under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C.', for brevity) seeking bail in Crime No.138/2019 of APMC Yard Police Station registered for the offences punishable under Sections 363, 307, 366A, 504, 506 and 201 read with Section 34 of the Indian Penal Code (hereinafter referred to as the 'IPC', for brevity).
2. The case of the prosecution is that on 13.12.2019 at about 23.00 hours one Sanju Basappa Desai filed a written complaint against the petitioner- accused No.1 and his wife-accused No.2 with APMC Police Station which is registered in Crime No.138/2019 under Sections 307, 366A, 504 and 506 read with 3 Section 34 of IPC. It is alleged that the complainant is residing with his wife Rajashree and they have two children i.e., the victim aged 7 years and a son aged 4 years. It is further alleged that on 11.12.2019 at about 6.00 pm one Sunil Balu Balnaik-son of the petitioner had taken their children for playing and he committed sexual offence on his daughter. She was crying with pain and when the complainant and his wife shifted their daughter to Belagavi Government Hospital and she was being treated at about 7.30 pm, the petitioner- accused No.1 and his wife-accused No.2 entered the Hospital and snatched the girl and in spite of resistance, they kidnapped the child out of the Hospital abusing the complainant and at that time, they also stated that they will kill the complainant's daughter and tried to press her neck. Petitioner and his wife took away the child on their motorcycle and the complainant searched for his daughter and she was found crying near Marriot Hotel in Kakati. The complainant's wife 4 filed a complaint with Kakati Police Station regarding the sexual offence committed on her daughter by Sunil Balnaik-son of the petitioner-accused No.1. The petitioner came to be arrested on 16.12.2019 and charge sheet has been filed for the offences under Sections 366A, 307, 504, 506 and 201 read with Section 34 of IPC and the case is pending before the leaned IV JMFC Court Belagavi in CC No.103/2020. The petitioner's wife-accused No.2 has been granted bail by the learned III Additional District Judge, Belagavi, in Crl.Misc.No.42/2020. The petition filed by the petitioner in Crl. Misc.No.325/2020 came to be rejected by order dated 15.06.2020 by the learned III Additional District and Sessions Court, Belagavi. Therefore, the petitioner is before this Court seeking bail.
3. Heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader for the respondent-State.
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4. Learned counsel for the petitioner has submitted that the incident has taken place on 11.12.2019 and the complaint has been filed on 13.12.2019 and there is a delay of 2 days in filing the complaint. It is his submission that there is political enmity between the petitioner and the complainant and therefore, the petitioner, his wife and their son have been falsely implicated by the complainant. It is his further submission that the petitioner is in judicial custody since 16.12.2019 and as charge sheet is filed his presence is no more required for any custodial interrogation. It is his further submission that the offences alleged are not punishable with death or imprisonment for life. It is his further submission that accused No.2, who is the wife of the petitioner, has been granted bail by the Sessions Court in Crime No.42/2020 and therefore, on the ground of parity, the petitioner is entitled for grant of bail. With these, he prayed for allowing the petition.
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5. Per contra, learned High Court Government Pleader submitted that the petitioner and his wife- accused No.2 have tried to destroy the evidence in respect of a case registered against their son under the POCSO Act. It is his further submission that the offence committed by the petitioner is a heinous offence i.e. attempt to kill a 7 year old girl and to destroy the evidence and therefore, the petitioner is not entitled for grant of bail. It is his further submission that if the petitioner is granted bail, he will tamper the prosecution witnesses and flee form justice and will not be available for trial. With this, he prayed for rejecting the petition.
6. Having regard to the submission made by the learned counsel for the petitioner and the learned High Court Government Pleader, this Court has gone through the charge sheet records. The incident has taken place on 11.12.2019 and the complaint has been filed on 13.12.2019. There is no explanation in the 7 complaint regarding the delay in filing the complaint. The victim has not sustained any injury as per the medical examination report. The offence alleged against the petitioner are not punishable with death. Accused No.2-wife of the petitioner, who is similarly placed to that of the petitioner, has been granted bail and therefore on the ground of parity, the petitioner is entitled for grant of bail.
7. It is well settled that matters to be considered in an application for bail are:
"(i) Whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of the charge;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;8
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being tampered with; and
(viii) danger, of course, of justice being thwarted by grant of bail. While a vague allegation that the accused may tamper with the evidence or witnesses, may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused."
8. In a decision reported in (2018) 3 SCC 22 in the case of Dataram Singh v. State of Uttara Pradesh and Another, the Hon'ble Apex Court held as under:
"A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another 9 matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society."
9. In the present case, the investigation is complete and charge sheet has been filed. No grounds have been made out by the prosecution to show that custodial interrogation of the petitioner is necessary. The petitioner is residing at the address shown in the cause title and the same is not disputed. The main objection of the prosecution is that in the event of granting bail, petitioner is likely to cause threat to the complainant and other prosecution witnesses. The said objection may be set right by imposing stringent conditions.
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10. In the facts and circumstances of the case and submission of the counsel, this Court is of the view that there are valid grounds for granting bail subject to certain terms and conditions. Hence, I proceed to pass the following order.
The petition filed under section 439 of Cr.P.C. is allowed. Consequently, the petitioner/accused No.1 shall be released on bail in Crime No.138/2019 of APMC Yard Police Station subject to the following conditions:
i) The petitioner/accused No.1 shall execute a personal bond for a sum of Rs.1,00,000/-
(Rupees one lakh rupees only) with one surety for the like sum to the satisfaction of the jurisdictional Court. Due to COVID-19, the petitioner is permitted to furnish surety within two months. If circumstances arise, the jurisdictional Court is at liberty to extend the period for furnishing surety.
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ii) The petitioner/accused No.1 shall not
indulge in tampering the prosecution
witnesses.
iii) The petitioner/accused No.1 shall attend the Court regularly.
Sd/-
JUDGE kmv